The Case Against Trial By Public Media

An authoritarian regime is bad, no matter what its ideological dressing may be. Terrorism is also bad, whether it is Islamic, secular, or so-called state terrorism. While this may be a truism, the EPRDF would argue that neither could nor should be forced on it.

Yesterday, ETV aired on prime time television a documentary prepared by the Information Network Security Agency (INSA) and the Federal Police Anti-Terror Joint Task-Force titled “Jihadawi Harekat” and subtitled “Boko Haram in Ethiopia”, despite an injunction issued by the Federal High Court prohibiting the dissemination of the film. The broadcast took place while the trials of 29 peaceful Muslim protesters, who are accused of terrorism, are pending.

The footage features few facts supported by evidence, except for the confessions of the accused, which, according to their defense attorney, were compelled by force. The central problem with the broadcast is that the defendants, already disadvantaged by coerced confessions, will now face the added hazard of prejudiced public opinion.

It is plainly evident that the defendants will not have a fair trial and that adverse publicity has gutted the principle of the presumption of innocence of the accused. This raises the additional grave concern – the right to a fair trial with presumption of innocence does not exist in Ethiopia! This is a classic hallmark of an authoritarian regime.

The Ethiopian constitution and other laws guarantee accused persons the right to fair trial. Article 20(1) guarantees accused persons “the right to a public trial.” But this constitutional protection is weakened by the lack of pre-trial publicity jurisprudence and responsible law enforcement, insofar as the absence of both undermine the right to a fair trial in that country.

Constitutional Article 19 (5) stipulates that, “[p]ersons arrested shall not be compelled to make confessions or admissions which could be used in evidence or against them. Any evidence obtained under coercion shall not be admissible.” In addition, Article 20(3) provides that “[d]uring proceedings accused persons have the right to be presumed innocent until proved guilty according to law and not to be compelled to testify against themselves.

As Ronald Dworkin has argued, the right of an innocent person not to be convicted should be regarded as fundamental. This is not only a legal harm to the individual, but a moral harm to any society when this is violated. While the purpose and role of the press and media are crucial to democratic governance and an open society, there does exist the real problem of abuse by the media in manufacturing guilt and public censure through influencing public opinion. This is a deep injustice. The right to a fair trial is founded on a fair criminal process and justice system in order to avoid miscarriages of justice.

The irony is that the injunction issued by the Federal High Court, and secured by the defense attorneys against ETV, was then countermanded by president of the High Court, who does not have that authority.

We are familiar with cases of contempt of court committed by the executive branch. What is unique in this case, and all the more surprising, is that it was committed by a judge. Any publicity which creates a substantial risk for the accused, and which undermines the fair application of justice during the proceedings in question, amounts to contempt of court.

What caused the most serious damage to the presumption of innocence protection in this particular case is not so much the act of public opinion, but the public dissemination of inadmissible evidence outside the court. To wit: the coerced confessions of the accused.

The so-called documentary presented no relevant evidence to support the charges of terrorism against the accused. All it did was connect insignificant dots and trivial facts, instead of providing any earth-shattering discoveries made in advance of the trial through intelligence gathering or investigation. For example, the documentary tells us that one of the accused, Aman Assefa, aka Ismael, used to own and operate a tumble-down juice store around Mercator, which he named “Salafiyya”. What does that prove?

The documentary also makes the absurd claim that the accused were trained by Jassim Sultan. The Economist extolled him in such words: “Jassim Sultan, a renowned Qatari intellectual, strikes a chord by rejecting the Brotherhood’s demand for strict obedience from its followers, and derides its slogan, “Islam is the solution”, as facile.”

What’s all the more puzzling is the attempt it makes to link the Ethiopian Muslim community’s yearlong peaceful protest movement to a decentralized regional command of jihadist terrorists such as the Boko Haram in Nigeria, Ansar Din in Mali, and Al Shabab in Somalia. Still worrisome is the farfetched idea that Ethiopia has the same geography as Afghanistan, Yemen, and Kazakistan, which makes it strategically preferable for waging warfare

No man in his right mind decides to wage a war just because he is allured by the geostrategic location of a country. You need to have a cause and no just cause is to be found amongst Ethiopian Muslims.

During the defendants’ court appearance today, the day after the controversial documentary was broadcast, Ustaz Abubeker Ahmed told the court that the issues the accused protested about and the Muslim committee addressed was their constitutionally guaranteed right to freedom of religion. He argued that their jailors were not ashamed of using torture to coerce confessions, and that following the TV broadcast of the documentary declaring them to be guilty, they don’t expect exoneration from the court.

Before adjournment today, the court reaffirmed that it had issued an injunction order prohibiting the broadcast of the documentary by ETV and that it would demand an explanation from ETV at its court appearance next week. But the damage is done.

In Ethiopia today, dissidents, whether journalists, academics, political opponents, or Muslims, are considered by the Ethiopian Government to be “terrorists” or are believed to be providing “moral support” to terrorists. Many have been convicted on trumped-up terrorism charges and are serving prison terms, both long and short. Others are convinced, although not convicted, of the terrorism allegations and expend much effort in staying out of the reach of the federal police. This can be explained in terms of a joke about the man and the corn that Slavoz Zizek loves to tell:

A man is convinced that he is really a grain of corn and is subsequently taken into care. Eventually the therapist in charge of his case is able to convince him that he is really a human being. Satisfied, the man is released but, after only a few minutes, runs back into the building shouting, “there is a chicken outside and he might eat me”. The therapist replies, “but you know you are not a grain of corn”. “Yes,” replies the man, “but does the chicken know?”

That chicken in Ethiopia was former Prime Minister Meles Zenawi, who bequeathed to all Ethiopians his draconian anti-terrorism legislation. This legacy is a form of terrorism that Ethiopians are suffering from. It is also the darkness of authoritarianism.Alemayehu Fentaw Weldemariam is a Horn of Africa expert at the LBJ School of Public Affairs, University of Texas at Austin, and a visiting scholar at Austin Community College